Consent

In her testimony, Linde Feakes said that Odim's assessment of the risks Ashton was facing came as a surprise to her. She said from her earlier meetings with Giddins she had been left with the impression that there was 99 per cent success rate for the sort of surgery that Ashton was to undergo.

It was just run of the mill. All of these kids, whatever, a lot of kids with Down's have heart surgery and come through no problem. Basically, when we talked to Odim, it was like he basically dropped a bomb or something.

I don't know, we came in there with-okay, we are going to meet the surgeon, no problem, and we left like totally in tears and everything. He told us that the repair Ashton had to have done, in the worldwide centres, like in the world renown centres or something like that, they had an 80 percent success rate with that surgery. And in Winnipeg in the last 10 years, they hadn't saved one with that surgeon-I mean with that surgery.

We didn't know why it was so-why all of a sudden the big change. His answer was because it was rare for a kid to have all of those defects in the same heart, because there is kids that have the different parts and those are easier to fix, but Ashton had so many things wrong with his heart.

And he told us he was from Boston. He just came from Boston, and that was one of the major world centres that he named. So we were assuming that this would mean that he would have an 80 percent survival rate also, if Boston did.

And we asked him how many of these surgeries [he] had done . He told us he did one under supervision, on his own, and he had assisted with some, I don't know how many, and he did all of these other parts individually, but it's rare to find them all together. So, that's why he hadn't done it often, all together in one kid. (Evidence, pages 2,891-2,892)

Linde Feakes also testified that Odim said the operation should be done right away. He also suggested that it should have been done by that time. John Feakes said that at first he thought Ashton should be sent out of province, but concluded that because Odim was from Boston, it would be appropriate to have him treated in Winnipeg.

The Feakes expected to hear back from Odim by the end of the first week in June. However, no date was set during this period. Linde Feakes indicated that the family had been expecting that surgery would take place during the summer, before Ashton's July 15 birthday. She said that the reason given to them about delay was that there was a backlog, not that the program had slowed down. She said that during the summer, no one raised the possibility of sending Ashton out of province, even though other children were being referred to other centres during this time.

Following a July 6 VCHC visit, Giddins wrote to Dr. Hawkins that it was likely that a date would be arranged for September or October. However, he said that this could not be finalized until the end of August. He also wrote that the family understood that there would be a delay. In his testimony, Giddins was asked on what basis he had made the prediction that it would be possible to undertake the surgery in September or October. He replied:

My belief that the issues that were resulting in the hiatus at the time were going to be and, in fact, were being addressed, and the program was developing appropriately. (Evidence, page 4,108)

When Giddins was asked if he had told the family of the slowdown in the program, he said he did not believe he had, since "It had no pertinence to Ashton's surgical care in the future." (Evidence, page 4,109) Giddins did acknowledge that the operation was deferred until the re-establishment of the program and that he had not informed the parents of this fact.

Linde Feakes testified that following the July 6 meeting with Giddins, the family again thought that surgery would take place soon. When she pointed out that Odim thought the operation should have taken place immediately, she said that Giddins told her that there was no danger in delay. In his testimony, Dr. Walter Duncan said that Ashton was still an acceptable candidate for surgery in late October, despite the delay.

It was only after the program resumed full operation in September 1994 that a final decision was made to perform surgery in Winnipeg. The initial decision was to schedule the operation for October 18. It is apparent that if it had not been for the program slowdown, Ashton would have undergone surgery in the late spring or summer of 1994.

It should be noted that this was an extremely high-risk procedure. Giddins testified that he would describe this repair as relatively high-risk, having a risk factor of 25 per cent. While Cornel and Dr. Walter Duncan agreed that the surgical approach that Odim employed was appropriate, they noted in their report that:

this is one of the more difficult types of repair to do well. Statistics are not favourable. Estimated Canadian risk for surgery in this condition may be as high as 10-20%. (Exhibit 354, page 13)

Soder gave this description of difficulties involved in this surgery.

We often refer to mitral valve surgery and AV canal surgery as an art. It is like sewing wet tissue paper is how our surgeons describe it. It takes a degree of creativity and artistry that I don't understand to make those filmy leaflets somehow line up and function in a reasonable fashion, because the canal is such a gross malformation of normal anatomy, and this isn't sewing firm tissues together in a sort of predictable mechanistic fashion. So it involves the highest level of skill, and in my opinion a great deal of intuition to get it right. (Evidence, pages 44,195-44,196)

As difficult as it sounds, this approach is preferable to putting in a prosthetic valve. Such valves require that the child take medication to ensure that there is no clotting around the valve. Furthermore, as the child grows, there must be further operations to replace the valve as the heart becomes bigger.

It is reasonable to ask if, in undertaking this operation, the team was not once more-to use the words of the Wiseman Committee interim report-taking on a case 'of an order of complexity that exceeded the program maturity.'

The operation was set for October 18, but was postponed when Ashton was found to have petechiae. These are minute reddish or purplish spots caused by hemorrhaging in the skin or mucous membrane. In some patients, the presence of petechiae means that there are not enough platelets. In other patients, petechiae are associated with a platelet dysfunction. (Platelets normally assist in blood clotting.) On October 5, Dr. Rachelle Yanofsky, an HSC hematologist, examined Ashton and concluded he had very mild petechiae and mild polycythemia (an increase in the total number of red cells of the blood). She recommended that Ashton not be treated with aspirin or antihistamines pre-operatively.

The results of an October 17 heart catheterization were essentially unchanged from the previous catheterization, except that the muscle bundles causing the right ventricular outflow tract obstruction were noted to be increasing in size and significance. The consulting witnesses agreed that Ashton had been diagnosed correctly. His parents gave formal consent for his operation.